U.S.

Department of Labor Office of Administrative Law Judges

2 Executive Campus, Suite 450
Cherry Hill, NJ 08002

(856) 486-3800
(856) 486-3806 (FAX)

Issue Date: 03 August 2007

Case No.: 2006-DBA-00001

In the Matter of:

Disputes concerning the payment

of prevailing wage rates by:

PALISADES URBAN RENEWAL ENTERPRISES, L.L.P.,

Owner

DT ALLEN CONTRACTING CO., INC.,

DANIEL1 T. ALLEN, PRESIDENT,
GREGORY ALLEN, VICE PRESIDENT,
Prime Contractors

A. MONTESINO ELECTRICAL CONTRACTING, INC.,

Subcontractor

NUCOR CONSTRUCTION, INC.,

Subcontractor

UNITED MECHANICAL CONTRACTORS, INC.

Subcontractor

Proposed debarment for labor standards

Violations by:

DT ALLEN CONTRACTING COMPANY, INC.

DANIEL T. ALLEN, PRESIDENT
GREGORY ALLEN, VICE PRESIDENT
Prime Contractor

With respect to Laborers and Mechanics employed

by the contractor on:

Jobsite: The Palisades/39th Street Housing,

Union City, New Jersey

1
The caption was amended from David Allen to Daniel Allen at the hearing on November 14,
2006. (Tr. at 7).
Appearances:

Susan Jacobs, Esquire

Stacy Goldberg, Esquire
For the U.S. Department of Labor

Douglas F. Doyle, Esquire

Charles Shaw, Esquire
For Palisades Urban Renewal Enterprises, L.L.P.
DT Allen Contracting Co., Inc.
Daniel Allen
Gregory Allen

Paul Speziale, Esquire

For A. Montesino Electrical Contracting, Inc.

Before: RALPH A. ROMANO

Administrative Law Judge

DECISION AND ORDER

This matter arises under the labor standards and prevailing wage provisions of the Davis-
Bacon Act (“the Act”), 40 U.S.C. § 3141 et seq., which requires that workers on government
construction projects be paid not less than the minimum wages determined by the Secretary of
Labor to be prevailing for corresponding work on similar projects in the area. Regulations, which
implement the labor standards and prevailing wage provision of the Act can be found at
29 C.F.R. Parts 5 and 6.

PROCEDURAL HISTORY

The United States Department of Labor (“DOL”) filed an Order of Reference on

September 28, 2005. (ALJX1). The Office of Administrative Law Judge’s Associate Chief Judge
Thomas M. Burke issued a Pre-hearing Order on October 12, 2005. (ALJX2). On November 17,
2005, the Government filed its Pre-Hearing Exchange document stating the names of the persons
alleged to have been underpaid and the nature of the alleged violations under the Act and other
relevant information related to this case. (ALJX3). On December 12, 2005, Respondent filed his
Pre-hearing Exchange document in response to the Government’s Pre-hearing Exchange
document. (ALJX4).

This case was assigned to me January 26, 2006. After several continuances, (ALJX6-
ALJX14), a formal hearing was held on November 14 and 15, 2006 in New York, New York.2
At that time, the parties were given the opportunity to examine witnesses and submit other

2
The transcript of the hearing consists of 504 pages and will be cited as “Tr. at --.”

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evidence.3 Following the formal hearing, the record was left open for sixty days after receipt of
the transcript for the parties to submit briefs. (Tr. at 500). On May 21, 2007, the Government
filed a Motion for Reconsideration of the exclusion of exhibit 42 and a Motion for Default
Judgment against Respondent’s United Mechanical Contractor’s, Inc. (“United”) and Nucor
Construction, Inc. (“Nucor”). On June 5, 2007, I issued an Order granting Default Judgment
against United and Nucor for failure to appear and participate in these proceedings.4 On June 5,
2007, I also issued an Order denying the Government’s Motion for Reconsideration and for
briefs to be submitted on or before June 7, 2007. The parties’ briefs were filed on June 7, 2007.5

This decision is rendered after careful consideration of the record as a whole, the
arguments of the parties, and the applicable law.

ISSUES

The issues presented for resolution include:

1. Whether employees were misclassified and paid a wage rate other than the
prevailing wage rate required under the provisions of the Act.

2. Whether Respondents DT Allen Contracting Co., Inc., Daniel Allen and

Gregory Allen failed to make overtime payments, as alleged, in violation of the
provisions of the Act.

3. Whether Respondents DT Allen Contracting Co., Inc., are strictly and jointly
liable as prime contractor for the subcontractors A. Montesino Electrical
Contracting, Inc. (“A. Montesino”), Nucor, and United’s alleged failure to pay
the prevailing wage rate required under the provisions of the Act.

4. Whether the circumstances warrant the requested relief of debarment of

Respondents DT Allen Contracting Co., Inc., pursuant to C.F.R. § 5.12(a)(1).

3
I received fourteen ALJ exhibits as “ALJX1-ALJX14.” (Tr. at 15). The Government submitted
forty-three exhibits which I marked and received as “GX1-GX41,” rejecting exhibits 17A and
42. (Tr. at 35, 38, 40-41, 43, 50-51, 53, 56-59, 61, 64-65, 85, 117, 120, 124, 126, 128-129, 131,
135, 326, 169, 171, 173-174, 176, 177, 200-201, 216-217, 221-222, 226-227, 230-231, 338-339,
344, 363, 459, 462, 468, 479-480). Respondent submitted one exhibit which I marked and
received as “RX1.” (Tr. at 435-436).
4
Although Default Judgment has already been entered against Nucor and United, the back wages
owed to their employees will be discussed in this opinion to the extent that it may affect DT
Allen’s liability as general contractor.
5
The Government’s brief will be cited as “GB at --.” Respondent Palisade’s Urban Renewal
Enterprises and DT Allen Contracting Co., Inc.’s brief will be cited as “R1B at --.” Respondent
A. Montesino Electrical Contracting’s brief will be cited as R2B at --.”

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 SUMMARY OF THE EVIDENCE

This case involves a contract for the development and construction of an affordable
housing single family residential unit at 3900 Palisades in Union City, New Jersey (“the
project”). (Tr. at 31).

The 3900 Palisades Affordable Housing Project

In 1998, Gregory Allen, a principal member of the private development firm, GDA
Affordable Housing (“GDA”), approached the Mayor of Union City, New Jersey and inquired if
he could submit an application for funds to construct affordable housing, the purpose for which
GDA was created. (GX8; Tr. at 36, 102, 372). Mr. Allen hired a housing consultant that
specializes in preparing applications to submit to agencies, banks, and investors seeking funds to
develop affordable housing projects. (Tr. at 375).

A proposal was submitted by the developers of the project, Palisades Urban Renewal
Enterprises (“PURE”), to receive funding from various sources. PURE consists of a joint venture
partnership between GDA and Economic Development Corporation of Union City (“EDC”).
(GX8; Tr. at 31, 36-37, 55, 99). The partnership agreement grants GDA the authority to
supervise and oversee the project during construction, and EDC was to manage the property after
it was completed. (GX8; Tr. at 100, 110). EDC is a 501(c)(3) tax exempt not-for-profit
organization that builds affordable housing in Union City. (Tr. at 36-37, 97). Virgilio Cabello has
been the president of EDC since 1997. (GX8; Tr.at 36-37, 97). EDC became involved in this
project during April of 1999 because having a non-profit organization as part of the partnership
enabled PURE to set aside funds from state low income tax credit programs and to receive extra
points on applications for funding. (Tr. at 99, 102, 377-378). Mr. Cabello is the authorized
signatory on behalf of PURE as part of his duties in this partnership. (Tr. at 110).

The City of Union City issued a resolution authorizing PURE’s application for grants on
January 5, 1999. The city approved applications for grants to both the New Jersey Department of
Community Affairs and Hudson County Division of Housing and Community Development
(“Hudson County Division”) for funds from the HOME program. (GX1; Tr. at 35, 382-383). The
New Jersey Department of Community Affairs is a state funded initiative from realty transfer
taxes received by the state of New Jersey. In addition, PURE requested and received funding
through the low income tax credit program. (Tr. at 31-32). The Richmond Group became an
investor, purchasing low income tax credits to provide financing for the development of the
project. (GX4; Tr. at 48, 394).

Susan Mearns has worked for Hudson County Division for 16 years. She began working
there as Housing Programs Manager, designing and developing housing activities on behalf of
the community. In August of 2001, Ms. Mearns replaced Fred Bado as Division Chief. Her
responsibilities as Division Chief are to oversee and administer housing and community related
activities that are funded by the United States Department of Housing and Urban Development
(“HUD”), including the HOME program. (Tr. at 29-31). Ms. Mearns explained that the HOME
program is a federal housing initiative from HUD. Through this initiative; funds appropriated by
Congress may be invested in private, non-profit entities to develop affordable housing. (Tr. at 31,

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33). In addition, Mr. Cabello explained that funds from the HOME program are used to fill in
gaps when there are not enough sources of funds from low income housing tax credits. (Tr. at
105). To qualify for funds from the HOME program, a project is based on the income of the
occupants and the cost of production. (Tr. at 34).

Hudson County Division prepared and sent a letter to PURE, dated August 30, 1999,
approving their funds from the HOME program in the amount of $1,166,000.00. The purpose of
this letter was to memorialize the project by detailing the amount of units, terms and conditions
for the receipt of funds, general requirements to draw on the funds, and insurance and title
requirements. (GX2; Tr. at 38, 75-76, 385). The letter also explained the HOME program
regulations; specifically that PURE must submit “evidence of compliance with applicable Davis-
Bacon wage rates, if applicable, including the incorporation of such wage rates into the
construction contract.” (GX2). Gregory Allen testified that he received this letter on behalf of
PURE. (Tr. at 398). Ms. Mearns explained that this was included in the letter because under the
HOME program all projects with eleven units or greater must comply with the Act and it was
Hudson County Division’s understanding that prevailing wage rages under the Act had to be paid
on the project. (Tr. at 39, 41). However, she did acknowledge that this letter does not specify
whether or not the Act applies. (Tr. at 75).

PURE responded in a letter, signed by Gregory Allen and dated September 21, 1999,
acknowledging that, as the borrower, they “hereby agree to enforce Davis Bacon wage rates.”
However, Gregory Allen explained that he was unsure if the Act applied to the project since the
prevailing wage determinations were not attached for his review. (GX3; Tr. at 400, 447). PURE
prepared and sent a development budget dated October 11, 1999, which included costs incurred
and paid by the developer and the HOME program. (GX4; Tr. at 42). The HOME program funds
are structured as a loan and the mortgage note for the amount of $1,166,000.00 was signed on
November 8, 1999. (GX5; Tr. at 49, 395-396). On November 22, 1999, Hudson County
Division provided PURE with a payment of $992.641.00 (GX6; Tr. at 448-449).

PURE and DT Allen Contracting Co., Inc. entered into a construction contract for the
project on November 3, 1999. (GX13; 107). This contract did not include a wage determination
as required by the letter from the HOME program approving the funds. (GX2; GX13; Tr. at 447).
In addition, the budget included for the project was for $4,684,150.00 and did not account for
prevailing wages under the Act. (GX13; Tr. at 441). On January 27, 2000, PURE sent a letter to
the New Jersey Department of Community Affairs informing them that DT Allen Contracting
Co., Inc.was selected as the construction contractor for the project. (GX7; Tr. at 53). DT Allen
Contracting Co., Inc. was formed by Daniel Allen, in 1984 and has evolved into a development
construction company, including developing single family residential buildings. Gregory Allen is
the vice-president of DT Allen Contracting Co., Inc. and has been employed by it since 1989.
(Tr. at 53, 365-366). Prior to the project, DT Allen Contracting Co., Inc. had been contractor for
two additional projects that were federally funded and subject to the Act. (Tr. at 55, 370-371).

On April 10, 2000, PURE and Hudson County Division entered into a regulatory
agreement (“the contract”). (GX9; Tr. at 56, 104). The contract was drafted by Hudson County
Division and Virgilio Cabello signed the agreement on behalf of PURE. (GX9; Tr. at 57). The
contract restated the federal requirements that the borrower/developer was required to meet in

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relation to the HOME program, but did not contain a wage determination. (GX9; Tr. at 57, 73,
104, 397). Gregory Allen testified that he signed the contract although there was no wage
determination attached. (Tr. at 402).

The DOL Investigiation

Bruce Braverman, an investigator and team leader for the DOL since 1975, conducts
investigations for the DOL. (Tr. at 160, 233-234). Responding to a complaint that carpenters
were not being paid the prevailing wage rate, Mr. Braverman began an investigation of the
project in 2000. (Tr. at 161, 235). The first step Mr. Braverman took was to collect documents,
specifically the contract specifications, wage decision, and certified payrolls. (Tr. at 161). Mr.
Braverman explained that he initially attempted to obtain these records from Hudson County
Division, but when he was unable to do so he contacted DT Allen Contracting Co., Inc. to obtain
the records needed. (Tr. at 163, 255, 261).

Mr. Braverman discovered that the prevailing wage determination was not included in the
contract. (Tr. at 162, 257). He explained that he did not take action at that time because he was
waiting to have the wage decision incorporated into the contract. (Tr. at 164). Mr. Allen testified
that he first learned that the Act applies to this project in August of 2000 when Hudson County
Division informed him that the wage determination was not incorporated into the contract. (Tr. at
401, 449).

On August 24, 2000, Gregory Allen sent a letter on behalf of DT Allen Contracting Co.,
Inc. to John Capazzi, the architecture for the project explaining that there may be a discrepancy
in the wages paid and the prevailing wage required. (GX21; Tr. at 169, 463). Mr. Allen further
stated that “it is our intention to have full compliance with Davis Bacon as well as other
applicable regulations.” (GX21; Tr. at 170). However, Mr. Allen testified that he did not contact
Nucor and inform them that they were paying their employees below the prevailing wage rate.
(Tr. at 464). Mr. Allen also sent a letter to Mr. Braverman on August 24, 2000, acknowledging
that the Act applies and requesting a meeting. Mr. Braverman and Mr. Allen did not meet;
however Mr. Braverman testified that he did go to DT Allen Contracting Co., Inc.’s offices
during his investigation to review certified payrolls. (GX22; Tr. at 171-172, 264; 410). Gregory
Allen also sent a letter to Mr. Braverman on August 25, 2000 stating that he “believe[s] we need
to have a wage determination if one does not already exist,” and requested a meeting. (GX23; Tr.
at 172-173, 410).

Enrique Lopez-Mena is employed by the Wage and Hour Division of the DOL in
Philadelphia, Pennsylvania as a regional wage specialist for the last one and one-half years.
Prior to that, he worked as a compliance specialist in government contract sections for eleven
years. His duties include reviewing government contract investigations to ensure that there is
sufficient evidence to refer the case to the Solicitor’s office to issue a charging letter and initiate
a hearing. (Tr. at 302-303; 309). Mr. Lopez-Mena explained that when a wage determination is
not included in a contract, the contracting agency, which is Hudson County Division in this case,
is required to modify the contract to include the wage determination because it is responsible for
including it in the original contract. (Tr. at 304, 307-308). In addition, the contract would be
modified retroactively even if construction had already begun. (Tr. at 305).

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 Mr. Braverman then contacted Wayne Horbert, who oversees labor relations and housing
projects in New Jersey and New York for HUD, and informed him that there was no wage
determination and the contract should be modified. (Tr. at 162). Mr. Horbert sent a copy of the
wage determination to DT Allen Contracting Co., Inc.to be incorporated into the contract.
(GX24; Tr. at 175).

In the summer of 2000 Mr. Braverman went to the jobsite and asked Dan Hartigan,
project manager for DT Allen Contracting Co., Inc., for copies of the certified payrolls for all of
the employees. (Tr. at 163, 405). On August 25, 2000 Mr. Hartigan sent a memo informing the
subcontractors for the project that DT Allen Contracting Co., Inc. needed their certified payroll
reports on form WH-347. (GX16; Tr. at 123, 405, 450-451). Gregory Allen testified that he
believed the memo was sent to all of the subcontractors on the project. (Tr. at 405).

Manny Montesino is president of A. Montesino, which specializes in electrical

installation. (Tr. at 95, 114). He has been in business since 1991 and has ten employees. (Tr. at
137). DT Allen Contracting Co., Inc. hired him as a subcontractor to do electrical work on the
project. (GX14; Tr. 114-115). He began working on the project without a written contract
sometime in 2000 and stopped working on it May 6, 2001. (Tr. at 118). Mr. Montesino explained
that he never signed a written contract with DT Allen Contracting Co., Inc. (GX15; Tr. at 121).

Mr. Montesino testified that he had been working on the project for approximately one
month when he received the request for certified payrolls. Olga Pena handles the payroll for A.
Montesino, so Mr. Montesino instructed her to provide Mr. Hartigan with the certified payrolls
for the men on the jobsite. (Tr. at 124-125). He testified that he has worked on over 100 jobs and
approximately five or six have involved prevailing wages. (Tr. at 137, 140). He explained that
he has filled out certified payroll forms to comply with the Act before and has only done
certified payrolls for state or federally funded jobs. (Tr. at 125, 140).

A. Montesino submitted certified payrolls and daily time sheets, which represent the
amount of hours worked on the project, to DT Allen Contracting Co., Inc. (GX17; GX18; Tr. at
127-128, 156-157). In addition, Ms. Pena created a summary of the employees that worked on
the project, including their hours worked and corresponding salary as of November 9, 2000.
(GX19; Tr. at 129-130). Mr. Montesino testified that he was never informed that the wages
included on the certified payrolls were inadequate under the Act. (Tr. at 156).

A. Montesino had three employees working on the project at the time. (Tr. at 127). Mr.
Montesino explained that his employees on the project included electricians and helpers. (Tr. at
116). Mr. Montesino testified that he was never informed by DT Allen Contracting Co., Inc., or
anyone that his employees on the 3900 Palisades project had to be paid prevailing wages. (Tr. at
135, 143). He testified that he contacted Mr. Hartigan after receiving the request for certified
payrolls and asked whether he needed to pay prevailing wages. Mr. Hartigan informed him that
DT Allen Contracting Co., Inc. was working it out with Hudson County Division. (Tr. at 141).
He further testified that he was not aware of the prevailing wage rates as he never received a
wage determination. (Tr. at 123, 155). Mr. Montesino explained that if he had been told of the
prevailing wages he would have stopped working on the project, reevaluate the work, and done
calculations to look into a change order. (Tr. at 135).

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 Mr. Montesino first learned of the prevailing wage when an investigation ensued. (Tr. at
136). Mr. Montesino also explained that he did not immediately begin paying back wages after
he received a letter from the DOL, dated April 30, 2002, informing him that the Act applies.
(ALJX1; Tr. at 152). He explained that he was not willfully refusing to pay, but that he did not
pay the back wages because he understood that the issue was still being resolved with Hudson
County Division. (Tr. at 154, 157).

Hudson County Division did not learn that the contract did not contain a wage
determination until the complaint was made. They prepared a wage determination for the project
on September 7, 2000 to incorporate into the contract. The wage determination was signed by
Fred Bado and sent to Gregory Allen on behalf of DT Allen Contracting Co., Inc. (GX10; Tr. at
58-59). Ms. Mearns testified that this was Hudson County Division’s method of notifying
Gregory Allen that Davis-Bacon wages had to be paid on the project. (Tr. at 86). Mr. Allen
testified that he received the wage determination from Mr. Bado in September of 2000 and asked
Mr. Hartigan to distribute a copy to all of the subcontractors. (Tr. at 449-450).

After receiving all of the certified payrolls, Mr. Hartigan sent them to DT Allen
Contracting Co., Inc.’s main office in Oakland. (Tr. at 455-456). On October 17, 2000, Gregory
Allen, on behalf of DT Allen Contracting Co., Inc., sent Mr. Braverman copies of the certified
payrolls. He also acknowledged receiving the prevailing wage decision and indicated his intent
to comply and incorporate it into the contract. Mr. Allen also requested a meeting with Mr.
Braverman to discuss his responsibilities and requirements. (GX24; Tr. at 175-176). Mr.
Braverman received certified payrolls for DT Allen Contracting Co., Inc., Nucor, United, and A.
Montesino. (GX17; GX26; GX27; GX28; Tr. at 176, 178, 344 459). However, Mr. Braverman
testified that he did not receive a full set of certified payroll records of DT Allen Contracting
Co., Inc., and had to request them a number of times, but he did eventually receive all of the
records for DT Allen Contracting Co., Inc. and the subcontractors. (Tr. at 177-178). Mr.
Braverman then reviewed the certified payrolls and compared them to the wage determination.
(Tr. at 164).

Mr. Braverman also conducted employee interviews with the help of a spanish
interpreter, Juan Perez. (Tr. at 237-238). He explained that he interviewed approximately ten of
the employees who were not being paid prevailing wages. (Tr. at 269). He testified that he
visited the job site several times, where four times he found the site unattended and four to six
times he observed the employees at work. (Tr. at 243-244). Mr. Braverman stated that the
employee interviews contributed in four or five of the re-classifications he made when he
computed the back wages discussed below. (Tr. at 269).

Back Wage Computations

As of March 2001, DT Allen Contracting Co., Inc. and Hudson County Division had still
not amended the contract. (Tr. at 262). Therefore, Mr. Braverman determined that DT Allen
Contracting Co., Inc., A. Montesino, Nucor, and United committed prevailing wage violations
and overtime violations. (Tr. at 202). He computed the back wages owed based on comparing the
wage decision with the certified payrolls records. (GX10; GX17; GX26; GX27; GX28; Tr. at

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201-203, 218, 223). Mr. Braverman summarized his computations for each
contractor/subcontractor as follows:

D.T. Allen Contracting:

Prevailing Rate Computations

Employees Beginning work Work Number Rate Rate Wages due
showed on week – end classification of hours paid due
certified work week worked per from
payrolls hour wage
decision
per hour
Fabian Ortiz 4/29/00-6/30/01 Carpenter 2172.5 $15.00 $39.60 $53,443.50
Chris Petrich 9/9/00-7/28/01 Carpenter 1583 $15.00 $39.60 $38,941.80
Juan Dedio 10/7/00-7/28/01 Laborer 642.5 $15.00 $15.97 $623.23
Gaspar
Total Due: $93,008.53
Overtime Computations
Fabian Ortiz 9/16/00-2/17/01 Carpenter 38 $7.50 $13.73 $236.74
Chris Petrich 9/9/00-7/28/01 Carpenter 54.5 $7.50 $13.73 $339.54
Total Due: $576.28

(GX10; GX26; GX33; Tr. at 203-216).

Mr. Lopez-Mena explained that the DOL makes the final decision when there is a
dispute regarding classification. (Tr. at 313). He further explained that if an employee provides
work under two classifications, the contractor may segregate the different types of work by the
number of hours worked and pay two different wage rates. However, if they do not segregate the
types of work, they must pay the higher wage rate for all of the hours worked. (Tr. at 306). To
determine how an employee is classified, one must first look at the wage determination to find
where the wage rates are coming from. If the rates are taken from a collective bargaining
agreement then you look at that, which will describe the types of work an employee classified
under that type of job performs. (Tr. at 315, 317-318).

Mr. Braverman explained that he determined the classifications for DT Allen Contracting
Co., Inc. employees based on job site observations and interviews. Mr. Braverman testified that
he witnessed Mr. Ortiz doing carpentry work, such as cutting and Mr. Petrich was observed
using carpentry tools. (Tr. at 205-207, 241). In addition, he interviewed them both and they both
described their job duties as carpenter’s duties using the “tools of the trade.” Mr. Braverman
explained that once tools of the trade are in their hands, the employees are carpenters and not
laborers. (Tr. at 207, 209-210). Furthermore, Mr. Braverman testified that being a carpenter
doesn’t require a certain skill level, but does involve hammering, nailing, cutting with saws,
using levels, using power tools, using nail funs, and using circular saws. Mr. Braverman also
explained that a laborer does clean up work, does not use the “tools of the trade,” and carries

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materials. (Tr. at 242-243). Determining how many laborers are needed vary from job to job and
trade to trade. (Tr. at 275).

Accordingly, Mr. Braverman changed Mr. Ortiz and Mr. Petrich’s classification from
laborers, as they were listed on the certified payrolls, (GX26), to carpenters. (GX33; Tr. at 211).
Gregory Allen testified that he believes that the employees were incorrectly re-classified as
carpenters as he had never seen them performing carpentry work and they were hired as laborers
to clean up, stop traffic, and load materials. (Tr. at 415, 419-422). Mr. Allen further explained
that DT Allen Contracting Co., Inc. employee’s were only on site as laborers to ensure that the
site was maintained in a safe and efficient manner. (Tr. at 471). However, he did testify that
these employees may have performed carpentry tasks, such as cut studs for framing and exterior
framing. (Tr. at 480-482). He believes, based on the classification of all three employees as
laborers, he only owes back wages of $4,266.06. (GX26; RX1; Tr. at 424).

In addition, Mr. Braverman testified that the rate due was taken from the wage decision
rate for carpenters and laborers in Hudson County. (GX10; GX33; Tr. at 212-214). Mr.
Braverman stated that he arrived at the wages due by subtracting the rate paid from the rate due
and then multiplying the difference by the total number of hours worked. (Tr. at 214).

A. Montesino:

Prevailing Rate Computations

Employees Beginning work Work Number Rate Rate Wages due
showed on week – end work classification of hours paid due
certified week worked per from
payrolls hour wage
decision
per hour
Carlos 9/29/00-10/13/00 Electrician 96 $16.00 $47.20 $2,995.20
Alpizar
Ramon 8/25/00-1/12/01 Electrician 510 $15.50 $47.20 $16,167.00
Fernandez
Juan 10/27/00-12/08/00 Electrician 45 $10.00 $47.20 $1,674.00
Gonzalez
Nelson 1/21/00-1/21/00 Electrician 2 $15.00 $47.20 $64.40
Gonzalez
Jose 12/01/00-1/12/01 Electrician 208 $26.00 $47.20 $4,409.60
Hernandez
Marco Luna 10/06/00-1/12/01 Electrician 192 $13.50 $47.20 $6,470.40
Carlos 7/14/00-11/01/00 Electrician 454 $12.50 $47.20 $15,753.80
Marino
David 12/22/00-12/29/00 Electrician 48 $15.00 $47.20 $1,545.60
Marrero
Jorge E. 10/27/00-10/27/00 Electrician 8 $9.50 $47.20 $301.60
Marrero

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Ignacio 9/15/00-10/27/00 Electrician 264 $11.866 $47.20 $9,329.76
Maure
Jose Maure 11/17/00-11/17/00 Electrician 8 $21.00 $47.20 $209.60
Alejandro 12/01/00-12/08/00 Electrician 32 $19.50 $47.20 $886.40
Menedez
Janoy Molina 9/29/00-10/27/00 Electrician 96 $10.00 $47.20 $3,571.20
Oxel Portilla 11/22/00-12/15/00 Electrician 64 $11.50 $47.20 $2,284.80
Florencio 8/4/00-8/4/00 Electrician 2 $15.00 $47.20 $64.40
Sandoval
Henry 11/22/00-1/12/01 Electrician 160 $9.00 $47.20 $6,112.00
Sandoval
Johny Santos 10/27/00-10/27/00 Electrician 8 $9.75 $47.20 $299.60
Remigio 10/6/00-10/13/00 Electrician 47 $8.75 $47.20 $1,807.15
Siquenza
Horace 1/21/00-1/21/00 Electrician 12 $18.00 $47.20 $350.40
Thorton
Rolando 7/14/00-8/18/00 Electrician 88 $17.00 $47.20 $2,657.60
Yera
Total Due: $76,954.51

(GX10; GX17; GX35; Tr. at 218-220).

Mr. Braverman explained that he determined the classifications for A. Montesino

employees based on the records obtained and observations on the job site. (Tr. at 219). In
addition, Mr. Braverman testified that the rate due was taken from the wage decision rate for
electricians in Hudson County. Mr. Braverman stated that he arrived at the wages due by
subtracting the rate paid from the rate due and then multiplying the difference by the total
number of hours worked. (GX10; GX35; Tr. at 220). Mr. Allen computed the amount of back
wages owed to A. Montesino employees based on the original classifications, which total
$42,043.91. (GX17; RX1; Tr. at 433).

Nucor:

Prevailing Rate Computations

Employees Beginning work Work Number Rate Rate Wages due
showed on week – end work classification of hours paid due
certified week worked per from
payrolls hour wage
decision
per hour
Rafael 6/7/00-9/13/00 Carpenter 276 $16.00 $39.60 $6,513.60
Pichardo
Jesus E. Diaz 6/7/00-9/20/00 Carpenter 334.5 $16.00 $39.60 $7,894.20
Marcos 6/7/00-9/6/00 Carpenter 131.5 $16.00 $39.60 $3,103.40

6
This rate reflects $0.86 in fringe benefits paid per hour. (Tr. at 219).

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Saminaugo
Angel 7/12/00-9/6/00 Carpenter 251.5 $16.00 $39.60 $5,935.40
Bazurto
Antonio 7/12/00-9/6/00 Carpenter 237.50 $16.00 $39.60 $5,605.00
Gutierrez
Abel 7/12/00-9/20/00 Carpenter 224 $16.50 $39.60 $5,174.40
Menendez
Miguel 7/12/00-8/9/00 Carpenter 200 $15.00 $39.50 $7,575.00
Menendez 8/23/00-9/13/00 112.5 $16.00
Idelso Sabori 7/12/00-8/9/00 Carpenter 200 $15.00 $39.50 $5,628.00
9/6/00-9/6/00 30 $16.00
Lidio Zabala 9/6/00-9/20/00 Carpenter 67.5 $16.00 $39.60 $1,593.00
Total Due: $49,022.00

(GX10; GX27; GX29; GX37; Tr. at 223-225).

Mr. Braverman explained that he determined the classifications for Nucor employees
based on the certified payroll records, other employee records, and employee interviews. (Tr. at
223-224, 362). In addition, Mr. Braverman testified that the rate due was taken from the wage
decision rate for carpenters in Hudson County. (GX10; GX37; Tr. at 224). Mr. Braverman stated
that he arrived at the wages due by subtracting the rate paid from the rate due and then
multiplying the difference by the total number of hours worked. (Tr. at 225). Mr. Allen testified
that the amount of back wages owed to Nucor employees based on the original classifications
total $26,336.20. (GX27; RX1; Tr. at 430). However, Mr. Allen did not personally observe
Nucor employees at work on the site. (Tr. at 470).

United:

Prevailing Rate Computations

Employees Beginning work Work Number Rate Rate Wages due
showed on week – end work classification of hours paid due
certified week worked per from
payrolls hour wage
decision
per hour
Joel 2/27/00-10/29/00 Plumber 504 $18.75 $45.13 $14,179.68
Chaviano 7/16/00-7/16/00 32 $17.50
Juan A. 7/16/00-10/29/00 Laborer 480 $15.75 $15.97 $105.60
Prieto
Saul 7/23/00-8/8/01 Plumber 1000 $19.25 $45.13 $26,985.20
Rodriguez 7/16/00-7/16/00 40 $17.50
Carlos 7/1/01-7/8/01 Laborer 80 $13.15 $15.97 $225.60
Lorenzo
Total Due: $41,496.08

(GX10; GX28; GX30; GX39; GX41; Tr. at 227-230).

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 Mr. Braverman explained that he determined the classifications for United employees
based on the certified payroll records, other employee records, and employee interviews. (Tr. at
228, 362). Mr. Braverman stated that a plumber uses wrenches and pipe cutters, installs fixtures
and pipes, uses a pipe threading machine and a pipe-cutting machine, whereas a laborer carries
material and cleans up the site. (Tr. at 251-252). In addition, Mr. Braverman testified that the rate
due was taken from the wage decision rate for plumbers and laborers in Hudson County. (GX10;
GX39; Tr. at 228). Mr. Braverman stated that he arrived at the wages due by subtracting the rate
paid from the rate due and then multiplying the difference by the total number of hours worked.
(Tr. at 229). Mr. Allen computed the amount of back wages owed to United employees based on
the original classifications, which total $331.20. (GX28; RX1; Tr. at 429). However, Mr. Allen
did not personally observe United employees at work on the site. (Tr. at 470).

After determining the amount of back wages owed, Mr. Braverman prepared a summary
of unpaid wages on a WH-56 form for each company in May of 2006. (GX34; GX36; GX38;
GX40; Tr. at 217, 222, 226, 231). At that time, Mr. Braverman sent a report to the DOL’s
regional office indicating the prevailing wage violations. The contract was not modified to
incorporate the prevailing wage determination at any time during Mr. Braverman’s investigation.
(Tr. at 165-166).

Revising the Contract and Seeking Compensation

PURE and Hudson County Division entered into a revised contract on May 15, 2001.
(GX11; Tr. at 60-61). The purpose of the revised contract was to incorporate the wage
determination into the documents for the entire project. (GX11; Tr. at 63, 106, 112). Virgilio
Cabello signed the document on behalf of PURE. (GX11). On May 11, 2001, Gregory Allen, on
behalf of PURE, sent a letter to Mr. Bado informing him that he received Mr. Bado’s letter
regarding the amended contract but had not yet received a copy from Mr. Cabello. In addition,
Mr. Allen informed Mr. Bado that he and his staff would execute the contract as soon as they
received it, even in Mr. Allen’s absence. (GX12; Tr. at 484-485). Mr. Lopez-Mena testified that
after the contract was amended, it was DT Allen Contracting Co., Inc.’s responsibility, as general
contractor, to pay the prevailing wages, retroactively to employees at the site. (Tr. at 307, 323-
324).

During the project, neither PURE nor DT Allen Contracting Co., Inc. indicated that they
needed additional funds to cover the cost of prevailing wages. In addition, they did not request
that the contract be amended to incorporate the prevailing wages listed in the wage determination
prior to the investigation. (Tr. at 65-66). Gregory Allen received a letter from the Wage and Hour
Division of the DOL, dated April 30, 2002, informing him that he was found in violation of the
Act and ordering him to pay back wages. (ALJX1; Tr. at 408). Mr. Allen spoke with Mr. Lopez-
Mena in June of 2002 and Mr. Lopez-Mena informed Gregory Allen that they had a right to
submit a change order at any time. Mr. Allen explained that a change order is the process to
request payment for the difference in the wages paid and the prevailing wage when the
prevailing wage determination is left out of a contract. (Tr. at 311, 314, 411).

Ms. Mearns testified that she recalled that there was an issue regarding DT Allen
Contracting Co., Inc. submitting a change order. (Tr. at 70, 73). She received a copy of a letter

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from DT Allen Contracting Co., Inc. to Mr. Lopez-Mena at the DOL; however she does not
remember the details beyond communicating with DOL on this matter. (Tr. at 70-71, 89). Ms.
Mearns explained that DT Allen Contracting Co., Inc. thought it had a right to request a
retroactive amendment to the contract to receive compensation for the back wages owed. (Tr. at
71-72). Ms. Mearns further testified that it has never submitted a change order. (Tr. at 88).
Furthermore she explained that she never met with Gregory or Daniel Allen regarding a change
order to incorporate the extra costs for prevailing wages; however she recalls receiving letters
from Daniel Allen requesting meetings on the issue of being compensated. (Tr. at 87, 91).

When Ms. Mearns was notified that there was a wage dispute on the project, the DOL
requested that she withhold $58,300 of the funds. (Tr. at 88). Mr. Allen explained that he has not
paid the back wages because he did not want to compromise his right to appeal the violation
determination. He also did not pay the back wages because he did not want that to adversely
affect his right to submit a change order. Mr. Allen testified that if it is determined that he must
pay the back wages he will then submit a change order to make up the difference. (Tr. at 414). In
addition, Mr. Allen testified that he did not submit a change order yet because he wanted to
allow the DOL to determine the necessary steps throughout the process and it did not make sense
to make a request until he knew what the final amount owed would be. He further explained that
he never had any intention to deny payment for the back wages owed. (Tr. at 436-437).

DISCUSSION

The Act provides that all Government construction contracts in excess of $2,000
performed within the United States shall contain a provision stating the minimum wages to be
paid various classes of laborers and mechanics based upon a specified schedule furnished by the
Secretary of Labor (“Secretary”). This schedule is based upon wages determined by the
Secretary to be prevailing for corresponding workers on similar projects in the area in which the
work is to be performed. 40 U.S.C. § 3142(a)-(b). The language and legislative history of the Act
show that it was not enacted to merely benefit contractors, but rather to protect their employees
from being paid substandard wages by fixing a floor under wages on Government projects.
United States v. Binghamton Const. Co., Inc., 347 U.S. 171, 177 (1954); Bldg & Const. Trades’
Dept., AFL-CIO v. Martin, 961 F.2d 269, 271 (D.C. Cir. 1992); Bldg & Const. Trades’ Dept.,
AFL-CIO v. Donovan, 712 F.2d 611, 614 (D.C. Cir. 1983); Carpet Linoleum and Resilient Tile,
etc. v. Brown, 656 F.2d 564, 565 n.1 (10th Cir. 1981).

The Secretary is responsible for making the final determination concerning rates of pay
and classifications of employees on each project. Nello L. Teer Company v. United States,
348 F.2d 533, 539 (1965); Plumbers Local Union No. 27, ARB Case No. 97-106 (ARB, July 30,
1998).

I. Misclassification

Employees are to be classified and paid according to the work they perform, without
regard to the level of skill required. 29 C.F.R. §5.5(a)(1); Fry Brothers Corporation, WAB Case
No. 76-06 (June 14, 1977). In addition, the equipment used in the work that is performed governs
rather than the skill or experience required. Framlau Corp., WAB Case No. 70-05 (WAB, April

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19, 1975), as cited in, Batteast Construction Company, WAB Case No. 83-12 (WAB, June 22,
1984). In order to comply with the Act, workers must be classified according to the
classifications used in the locality in which the contract is performed. Emerald Maintenance, Inc.
v. U.S., 925 F.2d 1425, 1427 (Fed. Cir. 1991) citing Building & Construction Trades’s Dept.
AFL-CIO v. Donovan, 712 F.2d 611, 614 (D.C. Cir. 1983) and Johnson-Massman, Inc., 96-
ARB-118 (ARB, 1996). It is incumbent upon the contractor to be certain that its employees were
properly classified when performing a job where the Act applies. By misclassifying and
underpaying workers, respondents proceed at their own peril. The Matter of Tele-Sentry Security,
WAB Case No. 87-43 (WAB, June 7, 1989).

The Secretary of Labor may obtain back wages for non-testifying employees where the
record and testimony of witnesses establishes that they are entitled to compensation. See, In the
Matter of Structural Services, WAB Case No. 82-13 (WAB, June 22, 1983). See also, Matter of
Schnabel Associates, Inc., WAB Case No. 89-18 (WAB, June 28, 1991); and, M.G. Allen and
Associates, 29 WH Cases (BNA) 374 (1988) citing both Structural Services and Anderson v. Mt.
Clemens Potter Co., 328 U.S. 680, 66 S.Ct. 1187 (1946). Likewise, it is permissible to award
back wages where no employees have testified. B&B Contractors, WAB Case No. 89-04 (WAB,
1991).

Respondent DT Allen Contracting Co., Inc. argues that Mr. Braverman incorrectly re-
classified two of its employees, Mr. Petrich and Mr. Ortiz, from laborers to carpenters. (R1B at
38). DT Allen Contracting Co., Inc. argues that Mr. Petrich and Mr. Ortiz were hired as laborers
to pick up materials, load materials, and clean up. (R1B at 38-39). I find Mr. Braverman’s
testimony that he observed these employees using the tools of the carpentry trade to be credible
as it is based on his personal observations as well as interviews with these two employees.
Respondent DT Allen Contracting Co., Inc. argues that Mr. Braverman’s observations are not
persuasive as he only observed and interviewed the employees once. (R1B at 39). However,
Respondent, Gregory Allen, admitted that those employees may have performed carpentry tasks,
such as cutting studs for framing, thus providing further credibility to Mr. Braverman’s
testimony.

Respondent DT Allen Contracting Co., Inc. also argues that Mr. Braverman incorrectly
re-classified two of United’s employees, Mr. Chaviano and Mr. Rodriguez, from helpers, which
is the same as a laborer, to plumbers. (R1B at 40). In addition, Respondent DT Allen Contracting
Co., Inc. asserts that Mr. Braverman incorrectly re-classified Nucor employees from laborers to
carpenters. (R1B at 41). Again, I find Mr. Braverman’s testimony that he observed these
employees using tools of the trade to be credible. He based his testimony on personal
observations, interviews with employees, and a review of the records provided to him. Moreover,
I note that Mr. Allen did not personally observe the United or the Nucor employees at work, yet
he is asserting, without any support, that Mr. Braverman’s observations and re-classifications are
incorrect.

Respondent DT Allen Contracting Co., Inc. is also asserting that Mr. Braverman’s re-
classification of A. Montesino employees is incorrect. (R1B at 42-43). However, I find Mr.
Braverman’s testimony to be credible for the same reasons discussed above. He relied on the

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records provided, personal observations of these employees using the tools of the trade, and
interviews with employees.

Accordingly, the Government has persuasively established that the work performed by
the Respondents’ employees and those of its subcontractors was exactly the type of work
performed under the job that Mr. Braverman classified them as. In addition, the testimony of Mr.
Braverman, the DOL investigator, concerning his calculations of back wages due was based on
the Respondents’ certified payroll submissions and are readily verifiable. I find those
calculations and summaries reliable, correct, and appropriate, and I adopt them.

II. The Contracting Agency’s Responsibility to Provide Prevailing Wages to the General
Contractor

Respondents’ argue that it was the contracting agency, Hudson County Division’s duty,
not its own, to ensure appropriate, accurate, and unambiguous wage determinations were
included in the contract and therefore Hudson County Division is responsible for compensating
the general contractor for the back wages owed. (R1B at 23-25; R2B at 6-7). Pursuant to 29
C.F.R. § 5.5(a)(1), it is the contracting agency’s responsibility for ensuring that the contract
includes the appropriate prevailing wage determination for each of the various classes of
mechanics and laborers predicted to be needed for the contract. This procedure serves to assist
contractors to comply with the Act.

Furthermore, the contracting agency may incorporate the prevailing wage decision
retroactively to the beginning of construction; however the contractor is to be compensated for
any increase in wages resulting from the change. The regulations further explain that the method
used to adjust the contract price “should be in accordance with applicable procurement law.”
29 C.F.R. § 1.6(f). The evidence establishes that requesting a change order is the proper method
to receive compensation for the difference in wages paid and the prevailing wages owed.
However, the evidence further shows Respondents have not, at any time, filed a change order
requesting to be compensated.

Respondents also argue that DT Allen Contracting Co., Inc. and his subcontractors were
not aware that prevailing wages under the Act applied to the project. (R1B at 24; R2B at 6).
However, I find that the testimony of the Ms. Mearns, Mr. Braverman, and Mr. Allen together
with the documentary evidence and unambiguous language of the contracts, which include
straight-forward provisions relating to the Act’s requirements, leave no doubt that DT Allen
Contracting Co., Inc. was properly informed of the responsibilities under the Act. Furthermore, I
find that Mr. Montesino was given notice that the Act applied to the project when he was
instructed to submit certified payrolls. Mr. Montesino testified that he only uses certified payrolls
on state or federally funded projects.

III. Prime Contractor Liability for Violations of its Subcontractors

It is well settled that a prime contractor is responsible for the back wages due employees
of its subcontractor under the Act, and is responsible for ensuring that all persons engaged in
performing the duties of laborer or mechanic on the construction site receive the appropriate

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prevailing wage rate. 29 C.F.R. §§ 5.5(a)(2), 5.5(a)(6); Kos Kam, Inc., WAB Case No. 88-29
(WAB, Mar. 15, 1991); Northern Colorado Constructors, WAB Case No. 86-31 (WAB, Dec.
14, 1987); Tap Electrical Contracting, Inc., & Calcedo Corp. & Expert Electric Inc., WAB
Case No. 84-1 (WAB, Mar. 4, 1985); In re Simpson Construction Co., 24 WH 484 (1979). As
the prime contractor, it is thus clear that DT Allen Contracting Co., Inc. is also responsible for
the wage underpayments by its subcontractors, A. Montesino, Nucor, and United.

The case law also supports the conclusion that A. Montesino, Nucor, and United, as
subcontractors, are also responsible for failing to pay the prevailing wage rate to their employees
pursuant to the Act.7 Ray Wilson Co., ARB Case No. 02-086 (ARB, Feb. 27, 2004); Arliss D.
Merell, Inc., 1994-DBA-000041 (ALJ, Oct. 26, 1995) (subcontractors were found to be jointly
and severally liable for the unpaid wages and fringe benefits owed to their former employees).

IV. Debarment

The standard for debarment under the Act is set forth in the regulations at 29 C.F.R.
§ 5.12(a)(2), which provides in pertinent part:

In cases arising under contracts covered by the Davis-Bacon Act,

the Administrator shall transmit to the Comptroller General the
names of the contractors or subcontractors and their responsible
officers, if any, who have been found to have disregarded their
obligations to employees, and the recommendation of the Secretary
of Labor or authorized representative regarding debarment. The
Comptroller General will distribute a list to all Federal agencies
giving the names of such ineligible persons or firms, who shall be
ineligible to be awarded any contract or subcontract of the United
States or the District of Columbia and any contract or subcontract
subject to the labor standards provision of the [Act].

Debarment has consistently been found to be a remedial rather than punitive measure so
as to encourage compliance and discourage employers from adopting business practices designed
to maximize profits by underpaying employees in violation of the Act. See, United States v.
Bizzell, 921 F.2d 263, 267 (10th Cir. 1990); S.A. Healy Co. v. Occuptational Safety and Health
Review Comm’n, 96 F.3d 906, 911 (7th Cir. 1996); Minor Construction Co., 1995-DBA-00042
(ALJ, June 12, 1997). Debarment is an appropriate compliance tool because it discourages
attitudes that violations of the Act will not be detected, and if they are, that said violations will be
lightly treated by requiring only a confession of violation and restitution of back pay. Phoenix
Paint Co., WAB Case No. 97-8 (WAB, May 5, 1989).

Violations of the Act do not per se constitute a disregard of an employer’s obligations

within the meaning of Section 5.12(a) so as to result in automatic debarment. Miller Insulation
Co., WAB Case No. 91-38 (WAB, Dec. 30, 1992). To support a debarment order, the evidence
must establish a level of culpability such as “aggravated or willful” and beyond mere negligence

7
See infra note 4.

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or inadvertent behavior. A. Vento Construction, WAB Case No. 87-51 (WAB, Oct. 17, 1990).
Allowing violations to persist can constitute evidence of intent to evade or a purposeful lack of
attention to a statutory responsibility in support of debarment. P&N Inc./Thermodyn Mechanical
Contractors, Inc., ARB Case No. 96-116 (ARB, Oct. 25, 1996).

In A. Vento Construction, the Wage Appeals Board explained that “[a]ctions typically
found to be ‘aggravated or willful’ seem to meet the literal definition of those terms –
intentional, deliberate, knowing violations of the Act.” Furthermore, in Hugo Reforestation, Inc.,
ARB Case No. 99-003, the Administrative Review Board adopted the Supreme Court’s standard
for establishing willful conduct under the Fair Labor Standards Act in McLaughlin v. Richland
Shoe Co., 486 U.S. 128, 133 (1988), which requires establishing that the “employer [knew] or
showed reckless disregard for the matter of whether its conduct was prohibited by statute.”

I find that the Government has failed to establish that DT Allen Contracting Co., Inc.,
Gregory Allen, and/or Daniel Allen acted in an aggravated or willful manner when they failed to
pay the prevailing wages pursuant to the Act. Since he was notified that the contract did not
include a prevailing wage determination, Gregory Allen communicated his intent to comply with
the Act and attempted to schedule meetings with the investigator to discuss his responsibilities
several times to no avail. Furthermore, Mr. Allen explained that he did not pay the back wages
owed after the wage decision was incorporated into the contract because he did not agree with
the computed amounts the DOL was claiming he owed, and he was unsure whether paying the
wages out of his own pocket would compromise his rights to challenge that amount, request a
change order, or appeal the DOL’s decision.

In addition, Mr. Allen has expressed his full intent to cooperate and follow the necessary
steps to pay whatever amount it is determined that he owes. Accordingly, I find this explanation,
in conjunction with the objective evidence, to be persuasive and credible in showing that these
parties did not have the requisite intent required to order debarment.

ORDER

It is hereby ORDERED:

(1) Respondents Palisades Urban Renewal Enterprises, L.L.P., DT Allen Contracting

Co., Inc., Daniel Allen, and Gregory Allen are liable for payment of back wage
amounts to the employees of DT Allen Contracting Co., Inc., herein specified, in
the total amount of $93,008.53.

(2) Respondents Palisades Urban Renewal Enterprises, L.L.P., DT Allen Contracting

Co., Inc., Daniel Allen, and Gregory Allen are liable for payment of back wage
amounts for overtime to the employees of DT Allen Contracting Co. Inc, herein
specified, in the total amount of $576.28.

(3) Respondents DT Allen Contracting Co., Inc., Daniel Allen, and Gregory Allen, as
prime contractor, are jointly and severally liable for payment of back wage

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 amounts to the employees of subcontractor, A. Montesino Electrical Contracting
Inc., herein specified, in the total amount of $76,954.51.

(4) Respondents DT Allen Contracting Co., Inc., Daniel Allen, and Gregory Allen, as
prime contractor, are jointly and severally liable for payment of back wage
amounts to the employees of subcontractor, Nucor Construction, Inc., herein
specified, in the total amount of $49,022.00.

(5) Respondents DT Allen Contracting Co., Inc., Daniel Allen, and Gregory Allen, as
prime contractor, are jointly and severally liable for payment of back wage
amounts to the employees of subcontractor, United Mechanical Contractors, Inc.,
herein specified, in the total amount of $41,496.08.

(6) Respondent A. Montesino Electrical Contracting, Inc. is liable for payment of

back wage amounts to the employees of A. Montesino Electrical Contracting,
Inc., herein specified, in the total amount of $76,954.51.

(7) The funds presently withheld by the Hudson County Division of Housing and
Community Development, as the contracting agency for the construction of the
project, shall, to the extent of the Respondents’ liability, be released to the United
States Department of Labor, to be distributed by the Department of Labor to the
specified employees. Such amounts shall be credited against the liabilities of the
Respondents specified herein.

A
RALPH A. ROMANO
Administrative Law Judge

NOTICE OF APPEAL

Any party dissatisfied with this decision may appeal it within forty (40) days from the date of
this decision by filing a Petition for Review with the Administrative Review Board, U.S.
Department of Labor, Room S-4309, Francis Perkins Building, 200 Constitution Avenue, NW,
Washington, DC 20210, under 29 C.F.R. § 6.34 and 29 C.F.R. Part 7. Such filing will have the
effect of making this decision inoperative unless and until the Administrative Review Board
either declines to review the decision or issues an order affirming the decision. 29 C.F.R.
§ 6.33(b)(1).

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